Sunday, March 6, 2016

Scalia

The three intellectuals who have most influenced my thinking about public policy are William F. Buckley Jr., Milton Friedman and Antonin Scalia. All three are now dead.

Scalia was widely regarded as an intellectual giant, which might lead a person to think that his major contribution to the law was esoteric. But the message he spent most of his time promoting was really pretty simple. We live in a democracy, where the people are the highest political authority. Judges should follow laws that are democratically enacted by the representatives of the people, whether they like the law or not.

That does not mean that judges have no role in reviewing democratically enacted laws for constitutionality. When the constitution conflicts with statutory law, the constitution controls. But the constitution controls, not because judges say so, but because the people said so when they enacted the constitution by super-majority.That result is counter-majoritarian, but not anti-democratic because the constitution itself is democratically enacted.

The alternative is a government where the will of the people is neglected and thwarted. But those who ignore the will of the people don't explain where their government derives its authority. I would like them to explain it, because I don't think they can. In fact, I don't think they understand how much their theory of a living constitution erodes the bedrock principle of any democracy: that government power is derived from the people.

Justice Scalia powerfully taught that the people were the highest authority of our government; I wish more people had learned the lesson.